24 June 2021 1 Bonavero Report 2/2021 ABOUT US The Bonavero Institute is a research institute within the Faculty of Law at the University of Oxford. It is dedicated to fostering world-class research and scholarship in human rights law, to promoting public engagement in and understanding of human rights issues, and to building valuable conversations and collaborations between human rights scholars and human rights practitioners. Since opening in October 2017, the Institute has been housed in a new building at Mansfield College. The Institute’s home at Mansfield is central to its identity as inclusive and welcoming, and is an important factor in the Institute’s ability to attract scholars and to host important symposia and conferences. The Bonavero Institute seeks to ensure that the research is of contemporary relevance and value to the promotion and protection of human rights. As part of its mission, the Institute has nurtured a vibrant community of graduate students, hosted outstanding scholars of law and other disciplines, and collaborated with practitioners engaged in the most pressing contemporary human rights issues around the world. The Bonavero Institute adopts a broad definition of human rights law to include international human rights law and practice, domestic human rights, the rule of law, constitutionalism and democracy. The Bonavero Reports Series is the flagship outlet for the scholarship produced at the Institute. It presents cutting-edge research in a straightforward and policy-ready manner, and aims to be a valuable source of information for scholars, practitioners, judges, and policymakers alike on pressing topics of the current human rights agenda. For more information, please visit our website. This report was written by Catherine O’Regan, Rosalind Dixon, and Joshua Aird, and submitted as evidence to the Independent Human Rights Act Review Panel in March 2021. 2 24 June 2021 AUTHORS’ BIOGRAPHICAL NOTES Catherine O’Regan: Professor of Human Rights Law, Director, Bonavero Institute of Human Rights, Faculty of Law, University of Oxford, Fellow, Mansfield College, judge of the South African Constitutional Court (1994 – 2009). Rosalind Dixon: Professor of Law and Director of the Gilbert + Tobin Centre of Public Law at University of New South Wales, Sydney, Australia. She is also co- President of the International Society of Public Law. Joshua Aird: PhD candidate and teaching fellow at UNSW. LLB(Hons) Victoria University Wellington, New Zealand, formerly practising solicitor. 3 Bonavero Report 2/2021 TABLE OF CONTENTS EXECUTIVE SUMMARY ................................................................................................................................ 5 INTRODUCTION ........................................................................................................................................... 6 THE HRA REGULATION OF THE RELATIONSHIP BETWEEN THE ECTHR AND THE UK COURTS (SECTION 2 OF THE HRA) ............................................................................................................................ 8 THE HRA REGULATION OF THE RELATIONSHIP BETWEEN THE EXECUTIVE, PARLIAMENT, AND THE COURTS (SECTIONS 3 AND 4) ........................................................................................................... 10 THE HRA ESTABLISHES A PARTNERSHIP BETWEEN PARLIAMENT AND THE COURTS, IN WHICH PARLIAMENT IS THE “SENIOR PARTNER”............................................................................................... 13 THE HRA IS LINE WITH GLOBAL BEST PRACTICE; AND A SUCCESSFUL BRITISH EXPORT: A COMPARATIVE OVERVIEW OF OTHER PROVISIONS ............................................................................. 15 A SHORTCOMING OF SECTION 4 OF THE HRA ....................................................................................... 28 DIFFERENT CONSTITUTIONAL CONTEXTS AND CULTURES ................................................................. 32 CONCLUSION ............................................................................................................................................. 36 4 24 June 2021 EXECUTIVE SUMMARY This report was prepared as a submission to the Independent Human Rights Act review established by the United Kingdom government in December 2020 to investigate the Human Rights Act, 1998 (the HRA) which incorporated the rights set out in the European Convention of Human Rights (the ECHR) into British Law. The Act has now been in force for twenty years. The terms of reference of the review made clear that the government remains committed to upholding its obligations under the ECHR and that the review was aimed at investigating “how the HRA is working in practice and whether any change is needed”. To do so, the review was asked to focus primarily on two themes: the relationship between the European Court of Human Rights and the UK courts under the HRA, and the impact of the HRA on the relationship between the judiciary, the executive and the legislature. This report considers both those themes. It observes that the HRA has been successful in protecting and promoting the enjoyment of human rights in the UK and has allowed UK litigants to seek relief in UK courts, thus allowing the UK courts to develop a principled rights jurisprudence responsive to the context of the UK. The report concludes that the structure of sections 2, 3 and 4 of the HRA have been a success. They fit well within the existing constitutional framework in the UK, including its international obligations under the ECHR. The report does note that if there is a drawback in the system, it lies in the inability of a UK cours to provide relief to successful litigants in circumstances where the court issues a declaration of incompatibility. Dissatisfied litigants, of course, retain their right to seek relief in Strasbourg. However, the report also concludes that although there may be ways to address this drawback, none will provide a perfect solution. The scheme was designed to ensure that Parliament is the senior partner in the relationship between the legislature, executive and judiciary, and so it is Parliament that bears the primary responsibility for ensuring that rights are protected. Section 4 of the HRA reflects this scheme. 5 Bonavero Report 2/2021 INTRODUCTION The terms of reference of the Independent Human Rights Act Review (“the IHRAR”) mandate the Panel to investigate two themes: how the Human Rights Act (“the HRA”) regulates the relationship between domestic courts in the UK and the European Court of Human Rights (“ECtHR”); and how the HRA affects the relationship between the executive, Parliament and the courts in the UK. It is clear from the terms of reference, however, that the UK government does not contemplate withdrawing from the European Convention of Human Rights (“the ECHR”) and the Panel’s investigation, therefore, should be proceed on that basis. These submissions are premised on the basis that the manner in which rights should be enforced in a particular democracy depends on the existing constitutional framework of that democracy and also, at least in some cases, on its international obligations. We provide an outline of interpretive provisions in other constitutional settings but in doing so do not suggest that they can be imported, without more, into the UK setting. As will become clear from these submissions, it is our view that the HRA has been a successful innovation for the following reasons: (a) the HRA has made an important contribution to the protection and promotion of human rights in the UK – in particular it has achieved the purposes set out in the 1997 White Paper, Rights Brought Home,1 in permitting people in the UK to approach UK courts for relief under the ECHR and not require them to approach the ECtHR in Strasbourg and has allowed UK courts to develop a human rights jurisprudence rooted in UK constitutional traditions and values; (b) the HRA has established an appropriate balance both between the ECtHR and the UK courts, and between the executive, Parliament and the courts; 1 Rights Brought Home: The Human Rights Bill (October 1997, CM 3782). 6 24 June 2021 (c) the HRA provides a nuanced remedial framework which provides robust protection for rights while recognising that Parliament is the “senior partner”2 in its relationship with the courts; and (d) the HRA, and its remedial framework, has been influential in the design and development of human rights systems in other jurisdictions. These submissions are divided into four parts: in the first we consider the manner in which the HRA regulates the relationship between the ECtHR and the UK courts, particularly through the mechanism provided by section 2 of the Act; then we consider the interlocking mechanism provided by sections 3 and 4 of the Act, which regulate the relationship between the executive, Parliament and the courts; third we provide a brief account of how the HRA has influenced rights protection in other jurisdictions; and fourth, we provide a comparative overview of other interpretive provisions in different constitutional settings. 2 The characterisation is made by Aileen Kavanagh in Constitutional Review under the UK Human Rights Act (Cambridge University Press, 2009) 407. 7 Bonavero Report 2/2021 THE HRA REGULATION OF THE RELATIONSHIP BETWEEN THE ECTHR AND THE UK COURTS (SECTION 2 OF THE HRA) Section 2 of the HRA requires courts to “take into account” jurisprudence of the ECtHR when deciding questions connected with convention rights. At the time the HRA was introduced